' The facts germane for the disposal of instant civil revision are that Respondent No, 1 being consumer of the petitioners/FESCO had been consuming the energy through the connection obtained from the petitioners/FESCO, who issued the bill for the month of September, 2007, amounting to Rs, 13,11,558/- on account of bill adjustment against the respondent/plaintiff. The respondent/plaintiff challenged the vires of the said disputed bill before the learned trial Court by filing a suit for declaration against the petitioners/FESCO with the assertion that he was regularly paying the bills for the consumption of energy and nothing was due against him, but the petitioners/FESCO males fidely issued the disputed bill without any prior notice in spite of that not any amount and arrears were payable by him till August, 2007. It was also alleged that no complaint was ever lodged against the respondent/plaintiff and there was no dispute between the parties, but the petitioners/FESCO without assigning any reason, issued the disputed bill while relying upon an alleged audit report and he prayed for the cancellation/correction of the disputed bill.
2. On the other hand, the suit was resisted by the petitioners/FESCO by filing written statement with the assertion that the respondent/plaintiff was not paying the bills according to his consumption; that the respondent/plaintiff, and the other consumers manipulated the record of the department in connivance with the officials of the department and when the said fact was revealed to the department, they got lodged an FIR/criminal case against the officials; that loss had been caused by the respondent/plaintiff and the bill issued by the petitioners/FESCO was based on exact consumption.
3. The learned trial Court captured the disputed area of facts by striking the issues keeping in view the divergent pleadings of the parties. Both the parties produce, their evidence in pros and cons and after appreciating the same, learned trial Court decreed the suit filed by the respondent/plaintiff vide judgment and decree dated 21.02.2013. Feeling dissatisfied, the petitioners/FESCO filed an appeal before the learned lower appellate Court, who dismissed the same vide judgment and decree dated 28.02.2014, hence this civil revision.
4. Learned counsel for the petitioners/FESCO has argued, that the impugned judgments and decrees passed by both the learned Courts below are not sustainable on legal as well as factual side of the case; that in fact 'after, observation of less billing by the Revenue Officer and on his request to the Chief Executive FESCO, a high powered committee was constituted, who thoroughly probed the matter and after examination of the record of billing, a detailed report was prepared regarding the less billing amount of the present respondent as well as some other consumers; that the report was verified by the Deputy Chief Auditor, Headquarter FESCO; that both the learned Courts below without adverting to the said substantial and material aspect of the case, decreed the suit filed by the respondent/plaintiff; that both the learned Courts below without appreciating the evidence available on file passed the impugned judgments and decrees, which are not free from any taint of misreading and non-reading of evidence; that the learned trial Court had no jurisdiction to entertain the suit, but both the learned Courts below without adverting to the said legal aspect, passed the impugned judgments and decreed the suit filed by the respondent/plaintiff. He lastly prayed for the acceptance of the instant revision petition, setting aside of the judgments and decrees passed by both the learned Courts below and that the suit be dismissed.
5. Arguments heard. Record perused.
6. It is straight away noticed that the petitioners/FESCO while filing written statement did no raise any objection regarding the jurisdiction of the Court. Even during the proceedings of the case, the petitioners/FESCO did not make any application for rejection of the plaint or for striking of the issue regarding the jurisdiction of the said Court. Further the petitioners/FESCO did not raise the same question of jurisdiction in the memorandum of appeal filed before the learned lower appellate Court. The learned counsel for the petitioners/FESCO has raised the said objection for the first time before this Court by filing the instant civil revision, which cannot be hardly allowed to be agitated at this forum for the first time.
7. Both the learned Courts below while rendering their findings mainly on Issue No, 1, decreed the suit filed by the respondent/plaintiff. The said issue is reproduced here-under for ready reference:- "Whether the plaintiff is entitled to get the decree for declaration as prayed for? OPP"
8. To discharge the onus of said issue, the plaintiff/respondent produced Haji Abdul Aziz as PW-1, Mohammad Ilyas as PW-2, Sabir Hussain Jafri, Record Keeper/Assistant Manager Operation, SDO FESCO, Chiniot, as PW-3, Mohammad Yousaf Record Keeper office of XEN FESCO, Chiniot as PW-4, Syed Own Abbas Shah LDC/Record Keeper, office of R.O. FESCO, Chiniot, as PW-5, Arshad Iqbal Commercial Superintendent/Record Keeper office of FESCO, Faisalabad as PW-6, Sarfraz Ahmad, Head Constable/Moharrar P.S. City Chiniot, as PW-7, and Mohammad Azim, Addl. Chief Auditor ESCO, Faisalabad as PW-8. He also produced documentary evidence x:P1 to Ex:P9. The petitioners/FESCO produced Mohammad Yasir, udit Officer (DW-1) and Nadeem Sajid, Revenue Officer (DW-2) besides the documentary evidence. The statement of Own Abbas PW-5 relevant who deposed in his examination-in-chief that there was no notice in their record which could have been given to the respondent/plaintiff prior to the completion of audit note and that completion of audit note was not given by the audit party. He further deposed that the investigation report was not in his record and it belonged to higher authority and proceedings of audit teem were not art of his 'record. He further admitted that order for audit of department was not on his record. The deposition of said PW- makes it fear that no notice was issued by the petitioners/FESCO to their consumer/plaintiff prior to the issuance of the disputed bill. Other witness Mohammad Azim PW-8 Addl. Chief Auditor FESCO, Faisalabad, deposed in his examination-in-chief that he had brought audit note prepared by the department against the respondent/plaintiff Inch belonging to the period from July 2006 to December 2006. He further deposed that the audit note did not contain any note written y the Revenue Officer, Chiniot, and the same also did not bear the stamp of Revenue Officer. The deposition of the said PW- is also of grate importance that the alleged audit note neither contained any writing on behalf of Revenue Officer, Chiniot, nor it bore stamp of the officer, who issued the same. The said deposition could not be rebutted by the respondent/defendant, whereas, Sarfraz Ahmad, Moharrar P.S. City Chiniot, was produced as PW-7, who deposed that FIR No, 547/2007 was got registered by the Assistant Manager Customer Services FESCO/ WAPDA Chiniot and the case was investigated.
9. The respondent/defendant has produced Nadim Revenue Officer, FESCO Chiniot, as DW-2, who admitted during the cross examination that FIR was discharged after investigation. He further deposed that the case was referred to FIA as per direction by the police. The deposition of the above said DW-2 that the culprits of FIR have been discharged by the Investigating Agency is of great significance.
10. There is no document on file which could prove that the petitioners/FESCO had moved any complaint against respondent/ consumer before the Federal Investigating Agency. The evidence available on file makes it clear that the petitioners/FESCO had neither given any notice to the plaintiff/consumer before the issuance of disputed bill nor the, consumer was joined in any audit proceedings. Furthermore, the contention of the learned counsel for the petitioners/FESCO that High Powered Committee was constituted, who after investigation made a report and in the light of the same, the disputed bill was issued, has no substance as the petitioners/FESCO failed to produce any of the Inquiry Member before the learned trial Court to prove the said inquiry report.
The best evidence was available to the petitioners/FESCO which has been with-held by them for the reasons best known to them. Inference under Article 129(g) of.Qanoon-e-Shahadat Order, 1984, has to be drawn against the petitioners/ FESCO for with-holding the best evidence. Reliance can be placed upon the cases reported as (2004 CLC 1), (1996 SCM R 137), (2007 M LD 1554) and (2009 YLR 1113).
11. The burden to prove the 'said investigation report on the basis of which the disputed bill was issued to the respondent/plaintiff was on the shoulders of the petitioners/FESCO, but nothing is available on file, whereby, it could be assessed that the petitioners /FESCO had discharged the onus by producing the same. The petitioners/FESCO had set up claim on the basis of said inquiry report conducted by High Powered Committee and also on the audit report allegedly issued by the auditor of the petitioners/FESCO. The evidence available on record has proved the fact that before initiating proceedings against respondent/consumer on the basis of said audit report, neither any show-cause notice was issued to the plaintiff/consumer nor he was joined in the said proceedings to justify the same. The audit objection is neither binding on the plaintiff/consumer nor he can be held responsible due to the fault of the department as pointed out in the audit report. Even the petitioners/FESCO failed to produce any relevant person before the learned trial Court through which it could be gathered that the said audit report was based on any material. The said material has also not been produced which could be made basis of the said report. It is also viewed from the report that in order to save the skin of its own employee, the amount was added to the account of plaintiff/consumer without any prior notice and without hearing him. Both the Courts below rightly observed that no amount could be recovered from the consumer on, the basis of audit report as he audit affair is between the WAPDA and its audit department and no audit report could in any manner make the consumer liable for any amount and the same could not bring about any agreement between the WAPDA and consumer making consumer liable on the basis of audit report. Reliance can be placed upon the case reported as "Water and Power Development authority etc vs. Umaid Khan" (1988 CLC 501) and "WAPDA through Chairman and 3 others vs. Fazal Karim and 5 others" (2008 YLR 308). The culprits of the FIR/officials of the petitioners/FESCO have already been discharged by the Investigating Agency.
12. Both the learned Courts below after appreciating the evidence available on file have rightly concluded that the disputed bill was issued to the respondent/plaintiff without providing him an opportunity to be heard and he was not liable to pay the said amount as the audit report as well as High Powered Committee report could not be proved. The findings of both the learned Courts below on Issue No, 1 are affirmed. The findings of other issues need not to be discussed as those have already been decided in negative against the petitioners/FESC O.
13. The learned counsel for the petitioners/FESCO has not been able to point out any misreading and non-reading of evidence available of file or material irregularity and illegality in the judgments and decrees passed by both the learned Courts below which having been passed keeping in view the material on record as well as. The relevant law, cannot be interfered with in the revisional jurisdiction by this Court the scope of whereof is narrower and restricted only to correct errors of law committed by the subordinates Courts. Safe reliance can be placed 'on the judgments passed by august Supreme Court of Pakistan reported as "Aurangzeb through L.Rs and others us.
Muhammad Jaffar and another" (2007 SCM R 236" and "Bashir Ahmed vs. Ghulam Rasool" (2011 SCM R 762)".
14. For the, foregoing discussion, the instant revision petition having no merit and substance is hereby dismissed in limine.